Case No. 79-ERA-3

In the Matter of

COMPLAINT OF WILLIAM R. WOOD
AND YEARGIN CONSTRUCTION
COMPANY

    This is a proceeding brought under the provisions of the Energy Reorganization Act (92 Stat, 2951), 42 U.S.C. 5851, (hereinafter referred to as Act), by William R. Wood against Yeargin Construction Company (YEARGIN) in which he seeks job reinstatement, back pay, costs and expenses based on his complaint of discrimination.

    After notice, a formal hearing on the complaint was conducted at Spartanburg, South Carolina on September 5, 1979. The parties were given full opportunity to present evidence, oral argument and briefs on the issues. The hearing was public and stenographically reported. This decision follows the termination of the formal hearing, and it is based on the entire record.

    The gist of Mr. Wood's complaint lies in his disagreement with his employer, Yeargin Construction Company, over the reason for his discharge on January 22, 1979. He states that he was fired because he threatened to call the office of the Nuclear Regulatory Commission (NRC), and not because he violated an NRC regulation in the course of his employment as charged by the employer. This complaint, briefly stated, was filed with the office of the Secretary of Labor on February 6, 1979.

    A telephone call to an office of the NRC by Wood on the day he was fired prompted an inspection by the Commission of the H. B. Robinson nuclear plant of the Carolina Power and Light Company (CP&L), a Commission licensee, at Hartsville, South Carolina. The results of this inspection conducted over two days, February 26 and March 2, 1979, are contained in a letter addressed to CP&L on March 23, 1979 (Complainant's Exhibit 2, p. 7):

Of the seven areas inspected, no apparent items of noncompliance or deviations were identified in six areas; one apparent item (Infraction - RC&T technicians used in responsible position without sufficient experience) (79-05-01). No apparent deviations were found.

    CP&L took corrective action in the matter of technicians, and the matter was closed by NRC on May 17, 1979.

    Mr. Wood gave a more detailed statement of his complaint to the Employment Standards Administration, Wage and Hour Division, U.S. Department of Labor on April 23, 1979 at Greenville, South Carolina. An investigation of the complaint was conducted by the Wage and Hour Division, which was concluded on or about August 16, 1979. The parties were unable to resolve or settle their dispute. Mr. Wood requested a hearing on the matter.

    After notice to William R. Wood, Yeargin Construction, and Carolina Power and Light Company, the case was tried on September 5, 1979 at Spartanburg, South Carolina. Mr. Wood appeared pro se. Yeargin Construction Company appeared with Counsel. Carolina Power and Light Company made no formal appearance in the case, but personnel of that company testified at the formal hearing as witnesses for Yeargin.

    As preliminary matters, the Respondent moved for the dismissal of the complaint on the ground that the complaint was not timely filed, and for a postponement of the hearing for the reasons that the Respondent had insufficient time within which to prepare for trial and for the additional reason that the location of the trial was inconvenient.

    A ruling on dismissal for timeliness was deferred pending receipt of evidence. It subsequently developed that the complaint

was filed with the Secretary of Labor on February 6, 1979 well within the 30 day file filing limit, imposed by statute, of the date of the occurrence of the alleged incident of discrimination on January 22, 1979. The motion to dismiss is Denied.

    The motion for postponement of the trial was denied and the hearing proceeded as scheduled.

    The Complainant, William R. Wood, is 48 years of age. He states that he finished high school. For many years, Wood has been employed as an electrician. He is classified as an industrial electrician, but he has no formal training in the trade and he is not licensed. Other than the indoctrination course given to him by CP&L before he went to work in the plant, the Complainant has no knowledge or skills regarding the operation of a nuclear energy plant.

    The Employer, Yeargin Construction Company, at all times pertinent to this case, was a contractor performing electrical work at the CP&L plant at Hartsville, South Carolina. The Employer's work did not involve the operation of the nuclear facility, and none of its employees were skilled in the operation of such plants. Yeargin's employees working at the plant, numbering about 270, were subject to the NRC and CP&L Regulations governing the operation and security of the facility.

    The operation of a nuclear energy plant poses a hazard to the health of the public from radiation, and for that reason the industry is closed regulated. The NRC mandates certain safety measures for the protection of the public as well as for the operating personnel. The safety and security of each plant, pursuant to regulations, are supervised by specially trained personnel (health physicists), who, at this plant, are called Radiation Control. and Test Group (RC&T).

    The nuclear component of the CP&L plant is contained in an area designated by the number "2". It is a control area surrounded by a chain link, alarm fence. The gate to the area is manned by a guard who checks all incoming personnel for bombs, gas, or any devices which might be used to damage the plant.

Inside the fence is an open area, free of contamination from radiation, which leads to the "auxiliary building." This building houses the RC&T personnel, offices, laboratories, and nuclear waste materials. Within this area, certain areas of contamination exist alongside uncontaminated areas. The building is monitored for radiation daily. The nuclear reactor is housed in a locked cement dome which is referred to as the "area of contamination."

    Persons working in the contaminated areas of the auxiliary building are required to wear protective clothing of cloth or paper. After use, the cloth clothing is laundered by a specially licensed laundry. The paper clothing is disposable. At or near the exit from the control area, there is a highly sensitive machine for monitoring radiation on the civilian clothing of the personnel leaving that area. All tools and material used in the contaminated areas must be tested (frisked or smeared) for radio active material before being removed from area "2". Where contamination is found, the plant has facilities for decontamination. Only the RC&T group is authorized to perform the functions of testing and decontamination.

    The employees at the plant are given clearance to work in the contaminated areas. The type of protective clothing they are required to wear is prescribed by the plant operator. They must submit their tools each day for testing, and when necessary, decontamination. As an aid in facilitating the process of screening hundreds of items, the employees are directed to separate their tools so that unused tools are shielded from radiation by plastic bags, These regulations apply to all persons working in the facility irrespective of their duties or their employers. Yeargin and its employees are as much bound by these procedures as the in-house employees.

    Yeargin has employed Mr. Wood on three occasions on different jobs. On one job, he was dropped in a reduction in force. On another, he was fired because he could not get along with fellow employees. He was hired to work at the plant on or about December 23, 1978. For a few days after he started the job at the plant, he worked on wiring the chain link fence. Thereafter, he was assigned for a few weeks to the auxiliary building to pull wire through conduit. At the time he was fired, he was repairing lights within area "2" on and around the auxiliary building.

    About the first week in January, 1979, Wood was involved in a dispute with CP&L over the use of protective clothing on his job pulling cable in the auxiliary building. He tested one of the cloth garments on the clothing monitor, and the machine registered a high reading of the presence of radioactive material. Wood objected to wearing the cloth, and he demanded that he be allowed to use paper protection. He felt that he was being exposed to more radiation from the cloth than he would have received if he was working without protective clothing. Wood met with one of the RC&T people in connection with this incident. He suggested that CP&L should get rid of the saturated clothes and buy new clothing. He testified that he was told that the purchase of new clothes would raise his electric bill. He states that paper clothing was put into service a few days later.

    The CP&L version of this complaint and the ensuing meeting is somewhat different. The matter was brought to the attention of the RC&T foreman, Doc Gainey. An attempt was made to explain to Wood the reason for the use of the cloth clothing, and his misunderstanding of the results of the monitoring he had done. Gainey stated that the cloth clothing was prescribed for Wood's job after the area in which he was working was tested. The clothing was considering safe within the parameters of the regulations even though it had a level of radio radioactive material that is not a laundered out. He stated that the machine on which Wood did his testing is a very sensitive instrument for finding the most minute particle of radioactive material. It is neither designed nor used for the use to which Wood put it. Gainey felt that the Company was unable to get this explanation across to Wood.

    On another occasion, Wood complained to his supervisor, Webster, that he had seen one of the RC&T personnel walk through a contaminated area without paper shoes. He viewed this as a breach of the regulations promulgated by CP&L.

    The incident that resulted in Wood being fired occurred while he was repairing lights within area "2". He was about to take one of the parts from a light through the gate. He had tested the part himself with a hand monitor. One of the CP&L foreman told him he would have to take the part to the RC&T department for testing. Wood felt that it was the Guard's job rather than the foreman's to determine whether the part had to be tested. He put the part down and took his break. When he returned, he took the part to RC&T and told the health physicist: "I'd like to get this damn shit smeared so I could get it out of there." (T. 111). He got no response to this exclamation. He

states that he then asked whether or not he had to have his tools smeared every time he came through a contaminated area. The physicist answered, "yeah." Wood responded, "They'll be checked every damn time I come through then." (T. 111, 112). At this point he went back to work.

    A short time after he returned to the job, Wood was ordered to go to Gainey's office. He took his tools to get them smeared, but he could not get it done at that time. Wood testified that the person on duty objected to smearing the tools:, "He said they never would get nothing done if they smeared everybody's tools." (T. 113) He was asked if he had been in a contaminated area, and he replied, "Not as I know of, I've not." (T. 113).

    Wood testified that when he got the call to go to Gainey's office he knew that it was about over and that he was "fixin" to go. When he arrived at Gainey's office, there was some conversation about getting the tools smeared. Wood "cussed" a little. Gainey said he would not have Wood talking to his people in this way. Wood was ordered to go to to the office of his supervisor, Webster.

    A meeting was held in Webster's office attended by Wood, Gainey, Webster and one of the RC&T personnel. Gainey complained to Webster that Wood had used abusive language toward his people on two occasions. Wood testified to the conversation among the parties at the meeting (T. 125 - 126):

BY MR. CREECH:

Q. Now, then, tell me about the conversation in Mr. Webster's office the same day, January 22nd.

A. When I was talking to Mr. Gainey, and he said, "You've got -- he said, "you can go back --you've got-- This has done happened twice. If it happens again, that's it," I reckon. And, that's when Bud didn't know the first time it had happened. And, then, I explained they shouldn't count the first time because they put the paper back on. "All right then, Mr. Webster," I said, "All right, I'll go back." Then I says, "But I'd like off tomorrow." Bud asked me, says, "Why do you want off tomorrow."

    Q. Bud Gainey?

    A. Bud Webster.

    Q. All right.

    A. I says, "Personal reasons." Now, this is the part that I didn't tell, Judge. I told him -- He said that it was up to my foreman. Well, if it was up to my foreman, why did he ask to start with? All right; then, Mr. Gainey says, "Well, I don't know." I says, Well, if you don't want me back in there, I'll take today and tomorrow off." And I said, "Now, I'll tell what I'm going to do." I'm going to the NRC." In less than 15 or 20 seconds, Mr. Gainey says, " I don't want him back in there." Says, "If you got any work out here on the outside," says, "it's all right. And I know there's no work on the outside, so I know I'm gone.

At this point Mr. Wood was placed under escort to get his tools. When he returned to Webster's office, he was terminated for the reason: "Violation of NRC reg. as requested by CP&L."

    Gainey testified that he called Wood into his office primarily because Wood insisted on doing his own testing of his tools for radiation, and because he refused to have the tools tested by the RC&T personnel. Secondarily, he was concerned about Wood's verbal abuse of his people. After some conversation in Webster's office, Gainey stated that he was willing to let Wood go back to work in area "2" provided he would abide by the rules and the directions of the health physicists. In response to this proposal, Gainey testified: "And, Mr. Wood made the statement that he; he'd go back over and go to work but he wasn't waiting on no health physicist to smear his tools; he'd smear his own tools if he had to wait along time." (T. 166). It was at this point that Wood was fired by Webster. Both Gainey and Webster testified that Wood said he was going to NRC after he was fired.

    Wood denied that he stated that he would smear the tools himself. He testified: "I believe that I said that if I had to go by their rules, in other words, wait for them to get smeared that they wouldn't be much work done." (T. 182) He also denies that he violated any of the rules. He challenged Gainey to tell him which rule he violated, but then he stated: "He said, that I

brought tools out, which I'll agree that I smeared them with the frisker and brought them out, . . . (but) they were not in a contaminated area; they were not in a radiation area, and I would like to ask you, would you do the same thing if you was working?" (T. 184).

    On cross examination, Wood was asked why he felt he had been discriminated against. He replied:

I should have been fired for cussing, and which I thought I was. When I went in them offices, I was wrong in every way, any word I said, nearly, I was wrong (T. 118).

    The Complainant, William R. Wood, was employed by the Yeargin Construction Company as an industrial electrician to work at the Carolina and Power and Light nuclear plant at Hartsville, South Carolina.

    Wood is untrained and unskilled in matters pertaining to the operation of and the maintenance of a nuclear plant.

    There is no evidence upon which to base a conclusion that CP&L violated NRC regulations in requiring Wood to wear cloth protective clothing, or that his exposure to radiation contained in the clothing was unsafe or contrary to regulations.

    There is no evidence upon which to base a conclusion that a CP&L employee violated the regulations when she walked through an area of the auxiliary building without paper shoes.

    On at least two occasions, Wood was abusive toward CP&L employees in his demands and in the use of profanity.

    Wood violated NRC and CP&L safety regulations by performing radiation tests on tools himself.

    By his words and deeds, Wood communicated to his employer and CP&L that he would not be bound by the regulations governing the inspection of his tools for radiation.

    Wood declared that he intended to complain to the NRC after he was fired.

    There is no evidence to support Wood's charges that the CP&L plant was operating in violation of NRC regulations during his tenure at the facility.

    The Complainant files his action with the Secretary of Labor pursuant to Section 5851 of the Act, which raises a cause of action against any employer who discharges any employee or otherwise discriminates against any employee with respect to his compensation, terms, conditions or privileges of employment because the employee commences or is about to commence a proceeding for the administration or enforcement of the requirements of this Act or the Atomic Energy Act of 1954, as amended, or testifies or is about to testify in such proceeding or who assists or is about to participate in such proceeding. If the Secretary of Labor determines that the employer has discriminated against the employee within the terms of the statute, the Secretary is mandated to order the employer to abate the violation and to order the reinstatement of the complainant to his former position together with the compensation (including back pay), terms, conditions and privileges of his employment. Furthermore, at the request of the Complainant, the Secretary shall assess against the violator costs and expenses (including attorney's and expert witness fees) reasonably incurred by the complainant in connection with his complaint.

    It is evident from the testimony and statements of the complainant in this case that the thrust of his complaint is that he was rightly fired but for the wrong reason. He admitted that he should have been fired for "cussin." Indeed, the employer had grounds to discharge Wood for his abuse of CP&L personnel. However, Wood overlooks or does not understand the real reason for his discharge. On the one hand, he acknowledges violating NRC and CP&L regulations in doing his own test for radiation on his tools, but then he insists that the employer tell him what regulations he violated. Though he was told that he was discharge for violation of the testing regulations at the time of his discharge and again at the formal hearing, he either does not understand or he cannot accept the reality of the employer's action.

    CP&L is engaged in an industry which has great potential for catastrophy. The dangers of a nuclear energy plant to the public

at large, and to the operating personnel in particular, are apparent from the record, and, if not, they are apparent from the events which are occurring regularly in present nuclear operations. The safe margin for error in the operation of a nuclear plant is small. Given this knowledge, it is the considered judgment of policy makers that nuclear power plants be rigidly controlled. Furthermore, out of concern for better enforcement of controls, the statute makes every employee in the industry an enforcer of the law, and protects him from reprisal for reporting violations.

    The management of the security of a nuclear plant is an awesome responsibility. Risk is an ever present component of the workday dependent, in degree, upon the proper functioning of all parts of the security system. At CP&L the system consists of RC&T and all of the 300 employees in the plant. The security of the plant is only as good as the reliability of each employee in his judgments during the working day. It is understandable that Gainey, the foreman of security, might be sensitive to any threat to the plant and take action as he did against the threat he perceived in Wood. Not understandable is why he waited so long.

    For whatever reason, Wood was engaged in gamesmanship at the plant. He felt that he was oppressed by the regulations that required him to wear paper shoes at his job, but that did not prohibit a CP&L employee from walking through the plant without paper shoes. He was agitated by the need to wait for his tools to be checked by the RC&T group. He questioned the authority of a CP&L foreman to direct him to obtain clearance of material he was removing from a control area. His abusive reactions to CP&L personnel evidence his resistance to and annoyance with the safety regulations. He placed his own judgment above that of the experts. He was occupied with a cat and mouse game wherein he was imbued with the notion that he was accountable for breach of regulations only if he got caught.

    The Complainant was fired by Yeargin because he violated NRC regulations. At the meeting in Webster's office on January 22, 1979, he was charged with violating regulations. Though he was cleared to go back to work in spite of his past conduct, he indicated by word and deed that he would not be bound by the rules. Inasmuch as Yeargin was required to operate within the parameters of CP&L rules, Wood was an embarrassment to this employer and a threat to its continuing to work at the plant. Wood's discharge was justified as a management prerogative for the reason assigned.

    Wood's complaint is not founded on a violation of law by CP&L. An inspection by NRC which followed his complaint did not result in a citation against the plant for violations pertaining to Wood or his complaint. CP&L was found to be in compliance with the regulations In all respects except as to the experience of some of its RC&T personnel, but, on the other hand, Wood is not aided by this finding because he did not know of the infraction until after NRC published the results of its investigation. In short, his firing is not based on his actions to administer or enforce the law.

    The result of Wood's discharge for violating an NRC regulation is salutary. It probably means that his application for future employment in the nuclear industry will provoke an inquiry into his suitability to work in that industry. In regards to his fitness for that work, this record raises questions as to the reasonableness of his judgments, his capacity for self-discipline, and his tractableness in a controlled setting. Employment in the nuclear industry is contra-indicated in the presence of such questions. In view of the risk to the plant and public offered by Wood's propensities, his discharge was overdue when it occurred.

    It is concluded that Wood has not shown any discrimination against him by his employer within the meaning of the Act.

    It is, therefore, recommended that the complaint filed by William R. Wood against Yeargin Construction Company be dismissed.

       GEORGE A. FATH
       Administrative Law Judge

Dated: October 5, 1979
Washington, D.C.

GAF/yw